Writ Petition No. 3420 of 2011

7th August, 2012

Petitioner Counsel: Mr. V.J. Dixit,Mr. M.G. Mustafa
Respondent Counsel: Mr. A.S. Bajaj

Cases Cited:
Mohammad Kavi Mohammad Amin Vs. Fatima Bee Ibrahim, (1997) 6 SCC 71 [Para 5,10]
Ramchandra and others Vs. Union of India and others, (1994) 1 SCC 44 [Para 5,10]
Nand Kumar and others Vs. Standard Mill Company and others, (2006) 5 Mh.L.J. 668 [Para 5]
Habibuddin Sadurddin & Ors Vs. Amirbi Shujauddin Inamdar (deceased though L.Rs.) and Anr., 2009(4) ALL MR 880 [Para 5,13]
Sikandar Jehan JBJegum and Anr Vs. Andhra Pradesh State government and others, AIR 1962 SC 996 [Para 6]
Jai Singh and others Vs. Municipal Corporation of Delhi and another, 2010(6) ALL MR 410 (S.C.)=(2010)9 SCC 385 [Para 12]
Surya Dev Rai Vs. Ramchander Rai and others, 2003(4) ALL MR 761 (S.C.)=(2003) 6 SCC 675 [Para 16]
Satyanarayan Laxminarayana Hegde Vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137 [Para 16]

JUDGMENT

JUDGMENT :- This petition takes exception to the judgment and order passed by the Maharashtra Revenue Tribunal, Aurangabad in Revision No. 84-B-2000-A, dated 6.7.2010.

2. The background facts for filing this writ petition, in brief, are as under:-

The respondent herein filed an application under Section 5 of the Hyderabad Atiyat Inquiries Act 1952 (hereinafter for the sake of brevity referred to as the "said Act") for granting succession stating therein that the land survey No. 101 and 176, Gat No. 324 and 478, admeasuring 10 Acres and 35 gunthas and 7 Acres and 30 gunthas, are the service Inam land. The respondent, in support of the said application, had filed some documents such as i) 7x12 extract of survey No.101, 174 and Gat No.324 and 478, ii) succession certificate Sr. No.17/1318 Fasli register No. 1983/255, iii) copy of Namuna No.9 (Inampatrak) of the year 1965 and 1966 of land survey No.101 and 176, iv) Death certificate of Gulam Hussain Miyajani, dated 19.6.1966 issued by Municipal Council, Khultabad, Hill Station, dated 13.3.1968.

3. It is the case of the respondent herein that, he is successor of Smt. Bibban Bee w/o Madarbaksh and Gulam Hussain s/o Miyajan Inamdar of Kingaon, Tq. and District Aurangabad, as per the provisions of Hyderabad Atiyat Inquiry Act. The respondent contended that Bibban Bee was the holder of the Inam and great grandmother of the claimant i.e. respondent herein, and Gulam Hussain i.e. father of the respondent, was the Shikimdar with Bibban Bee. It is respondent's case that, the land was granted for rendering of service to Masjid bearing survey No. 101 and 176 situated at village Kingaon. It was the case of the respondent that, Bibban Bee expired between 1349 to 1359 Fasli without having any heirs except Gulam Hussain. The said Gulam Hussain was also not keeping good health and he also used to live village Khultabad and he expired in the year 1966 and the grant was attached by the government and he prayed succession of deceased grant holder in favour of the claimant i.e. the respondent, in respect of service of Inam land bearing Gat No.324 (101) and Gat No. 478 (Survey. No.176) of village Kingaon for the performance of service of Mosque, situated at Kingaon.

4. There was prayer for condonation of delay in the said application. Therefore, the Deputy Collector (Atiyat), referred the matter to the Collector for condonation of delay. The Collector referred the matter for condonation of delay to the Divisional Commissioner, Aurangabad. The Divisional Commissioner, allowed the prayer for condonation of delay and the matter was sent back to the Deputy Collector, (Atiyat), Aurangabad for enquiry. The Deputy Collector, allowed the succession proceeding.

The said order was challenged by the petitioner herein before the Additonal Collector, Aurangabad by filing an appeal. The said appeal was registered as Case No. 99/Appeal/Atiyat-1. The Additonal Collector, dismissed the said appeal by judgment and order dated 19.11.1999. The said judgment and order was challenged before the Maharashtra Revenue Tribunal, by way of Revision No. 84-B-2000-A on 30.4.2001.

The learned Member of the Tribunal, earlier had dismissed the said revision in default, however, the same was subsequently restored on 17.5.2001. The learned Member of the Maharashtra Revenue Tribunal, on 6.7.2010, after hearing the parties, on merits dismissed the revision filed by the petitioners. Being aggrieved by the said judgment and order, this writ petition is filed.

5. Learned counsel appearing for the petitioner submitted that there was no notice to the petitioner of lower court's proceeding when the petitioners were/are in possession of the suit property since 1945 and they have right to be heard. It is submitted that the proceedings filed by the respondent are after lapse of 36 years. In fact, as per Rule 3 of the said Rules, an application for succession must be filed within 90 days from the date of death of the last holder. It is submitted that the father of the respondent Gulam Hussain died in the year 1969 and succession of father of the respondent also was not granted. So the application was filed for succession of Bibban Bee directly when there was no succession of Gulam Hussain is not tenable. It is submitted that the delay of 36 years could not have been condoned by the lower court without notice to the predecessors of the petitioners. As per the amendment in the Act, the power to condone the delay beyond a period of one year is with the Commissioner and there is no outer limit. However, as per the reported judgment of the Supreme Court in the case of Mohammad Kavi Mohammad Amin vs. Fatima Bee Ibrahim, reported in (1997) 6 SCC 71, Ramchandra and others vs. Union of India and others, reported in (1994) 1 SCC 44, Nand Kumar and others vs. Standard Mill Company and others, reported in (2006) 5 Mh.L.J. 668, if no outer limit is prescribed, 3 years period should be considered as a reasonable time, and as the application is filed after 36 years from the death of earlier succession holder and after 19 years from the death of father of the respondent, without any application for condonation of delay, the delay should not have been condoned and the application under Section 5, must have been rejected on the ground of delay itself.

It is submitted that the right of succession of respondent, when his father's objection was heard on merits and it was held that father of the respondent has no right as per the Muslim Law, and that order was never challenged and became final is binding on the present respondent. It is further submitted that the petitioners have locus to challenge the proceedings initiated before the Atiyat Court since the petitioners are in possession of the land and the predecessors of the petitioner were Mutawali of the Masjid. It is further submitted that the respondent has not filed any single document to show that he is having any relations with Bibban Bee w/o Madar Baksha as well as with Gulam Hussain. It is submitted that name of the father of the petitioners is already recorded in Khasra Patrak, Pahni Patrak 7x12 extract from 1945 and therefore, the contention of the respondent that the Bibban Bee was expired in 1349 to 1959 Fasli itself is not correct and therefore, the judgment and order passed by the learned lower court is liable to be quashed and set aside. It is submitted that when the name of the father of petitioner No.1 Ahmed Shah appeared in the gazette, as Mutawali and therefore, the Atiyat Court should not have allowed the application of the respondent. Learned counsel also invited my attention to the grounds taken in the petition and annexures thereto and submitted that the writ petition deserves to be allowed.

While concluding the arguments, the learned senior counsel, appearing for the petitioners, for the first time in this writ petition, orally tried to canvass an altogether new ground which is not agitated before the authorities below or even the said ground is not mentioned in the writ petition that, the mother of Gulam Hussain (Tarobi) died during life time of her father i.e. Madar Baksh (original Inamdar) and therefore, as per the Muslim Personal Law, if the legal heirs dies during life time of his father, heirs of the deceased will have no right in the property. In support of this contention, learned counsel for the petitioners pressed into service a judgment of this Court in the case of Habibuddin Sadurddin & Ors Vs. Amirbi Shujauddin Inamdar (deceased though L.Rs.) and Anr. reported in 2009(4) ALL MR 880.

6. On the other hand, learned counsel appearing for respondent No.1 invited my attention to the affidavit in reply filed in this writ petition. It is submitted that the Revision before the Tribunal was not maintainable. It is submitted that the petitioners are neither Inamdar nor concerned with the suit land and also there is no succession granted in their favour to show his locus standi to challenge succession granted in favour of respondent. It is further submitted that no succession is granted in favour of the petitioners in view of the provisions of the said Act. As the land involved are admittedly service Inam land and the obtaining of succession for every Inamdar is essential, as has been held by the Supreme Court in the case of Sikandar Jehan JBJegum and Anr vs. Andhra Pradesh State government and others, reported in AIR 1962 SC 996 on the principle of re-grant is possible only after the grant of succession under the said Act. In short, the petitioners are not Inamdar at all. On this ground alone the petitioners have no locus standi to challenge the succession granted by the Courts below in favour of the respondent. The above preliminary points are sufficient to entail the dismissal of the writ petition.

It is submitted that the courts below have rightly passed the orders and no illegalities are committed by the courts below nor any jurisdictional error has been committed by the courts below. Therefore, no question arises for interference in the orders passed by both the courts below. The respondent denied the contents that Bibban Bee has appointed one of Amirshah as a Mutawali who was looking after the land Gat No.324/478. There is no record to show and prove the above contention nor any cogent evidence bought on record. It is further denied that after the death of Amir Shah the petitioners are in possession as a Mutawali to do the religious performance the services of the institution and Masjid. The respondent has denied that the petitioners are in possession of their grand mother and father and that is no relations with Bibban Bee. It is submitted that the petitioners are not Inamdar nor having having right to challenge the succession granted by the Atiyat Court. It is further submitted that the petitioners are not legal heirs and successors of the original grant holder nor having any concern with the suit land. It is further submitted that the respondent is performing services of the Institution and its property and for that the Marathwada Wakf Board has also issued certificate to that effect for rendering the services. It is further submitted that there is no single document to show the very locus standi of the petitioners. It is further submitted that the Atiyat Court has rightly granted succession. In the succession proceedings, the Atiyat Court had issued notice for calling objection, but no objection was filed in the Atiyat Court and without filing such objection, the petitioners had filed appeal before the Additonal Collector. It is submitted that the courts below have rightly passed the judgment and and orders and there is no illegality committed by the courts below.

Learned counsel for the respondent, therefore, submitted that there are concurrent findings recorded by the Deputy Collector, Additonal Collector, and the Maharashtra Revenue Tribunal and all these authorities have recorded the findings in favour of the respondent and therefore, this Court may not interfere in the concurrent findings of facts.

7. With the assistance of learned counsel appearing for the parties, I have given due consideration to the rival submissions canvassed by them. I have perused the impugned judgment and orders and also the petition, annexures thereto and the record made available for perusal.

8. At the outset, it is required to be observed that, the Maharashtra Revenue Tribunal, Aurangabad relying upon concurrent findings recorded by the authorities below, held that, the petitioners have not placed any evidence on record to show that they are the successors of Smt. Bibban Bee. Therefore, in real sense, the petitioners have no locus to challenge the succession proceedings initiated by the respondent.

Secondly, though the learned senior counsel for the petitioners tried to canvass altogether new ground that the mother of Gulam Hussain (Tarobi) died during life time of her father i.e. Madar Baksh (original Inamdar) and therefore as per the Muslim Personal Law, if the legal heirs dies during life time of his father, heirs of the deceased will have no right in the property. However, in my view, since this ground was not agitated before any forum and not even taken in the writ petition and for the first time being agitated by way of oral submission and by way of filing written notes of arguments, the same cannot be considered for the simple reason that, the respondent had no opportunity to rebut the said ground. The rejection or acceptance of said ground, necessarily would depend upon the appreciation of evidence and facts involved in the matter and therefore, it cannot be considered for the first time in the writ jurisdiction.

9. One of the grounds, raised by the petitioners, that there was inordinate delay in filing application Under Section 5 of the said Act, has been considered by all three forums. The Divisional Commissioner has power to condone the delay beyond a period of one year. Such powers are given to the Divisional Commissioner by effecting an amendment to Rule 12 of the Hyderabad Atiyat Inquiries Rules 1954. The said amendment is brought into force in the year 1985, which reads thus:-

"2. In rule 12 of the Hyderabad Atiyat Enquiries Rules, 1954, in sub-rule (2),-

(i) for clause (c), the following clause shall be substituted, namely:-

"(c) The Commissioner, Aurangabad Division, beyond one year""

10. Therefore, in Hyderabad Atiyat Enquiries Rules 1954, there is provision which enables the Commissioner, Aurangabad Division to condone the delay beyond a period of one year.

In the present case, all three forums have held that the matter was referred to the Commissioner by the Collector and the Divisional Commissioner, has condoned the delay caused in filing the proceeding under the said Act, by the respondent.

The reliance placed by the counsel for the petitioner upon the reported judgments of the Supreme Court as well as this Court, cited supra, to contend that, if no time limit is prescribed, 3 years period should be considered as the reasonable time to exercise the powers, is not applicable in the facts of this case. The Hon'ble Supreme Court in the case of Mohammad Kavi Mohammad Amin vs. Fatima Bee Ibrahim, reported in (1997) 6 SCC 71, Ramchandra and others vs. Union of India and others, reported in (1994) 1 SCC 44, has taken a view that where no time limit is prescribed for exercise of power, it should be exercised within a reasonable time. In the present case, there is specific provision to consider the prayer for condonation of delay by the Commissioner, if the delay is beyond period of one year then the Commissioner is empowered to condone the delay. Therefore, it is not the case that there is no provision in Atiyat Enquiries Act and Rules therein to consider the prayer for condonation of delay. In the facts of this case, the Divisional Commissioner has only condoned the delay. An inquiry is held by the Deputy Collector (Atiyat), as permissible under the said Act.

The another contention of the counsel for the petitioners that, no notice was given to the present petitioners, has been considered by the Tribunal. The Tribunal in para 8 of its judgment held that there is no evidence on record to show that said Ahmed Shah is legal heir of said Smt. Bibban Bee. The conduct of said Ahmed Shah also goes against him. It does not appear that said Ahmed Shah, at any time, made an application claiming succession as L.Rs. of said Smt. Bibban Bee. Therefore, it follows from the findings recorded by the Tribunal that the petitioners herein who claim to be L.Rs. of Ahmed Shah have not placed any evidence on record to show their relationship with Smt. Bibban Bee. Therefore, a safe conclusion can be drawn in succession proceeding filed by the respondent that, the petitioners herein failed to bring on record any evidence to show the relationship with said Bibban Bee to claim succession. Therefore, the question of locus to challenge the succession proceeding initiated by the respondent is rightly agitated by the counsel for the respondent.

11. Upon careful perusal of the reasonings recorded by the Deputy Collector (Atiyat), Additonal Collector and the Maharashtra Revenue Tribunal, there is no manner of doubt that procedure, which is required to be followed at the time of accepting the claim of the respondent, as successor of Smt. Bibban Bee, who was the grand mother of respondent, and Gulam Hussain was the father of the original applicants has been followed by the authorities. All three forums below have accepted the contention of original applicant that Smt Bibban Bee died in the year 1949, whereas his father Gulam Hussain died in the year 1966. It is also recorded that, indisputably said Bibban Bee was great grand mother and said Gulam Hussain is the father of the original applicant. The Tribunal has also observed that the other rights of the parties need not and cannot be decided in the succession proceeding under the Hyderabad Atiyat Inquiries Act. The right to act as Mutawalli and the right of possession are not relevant for deciding the claim of succession. It is also recorded by all three forums that Gulam Hussain was a Shikmidar or a shareholder in the grant. The Tribunal in para 7 has observed that it is an admitted position that the original applicant is related to Smt. Bibban Bee and said Gulam Hussain who are dead. 'There is nothing on record to indicate that any other person is legal heir or relative of Bibban Bee and Gulam Hussain.' (Emphasis supplied).

While considering the arguments of the petitioners that no notice was given to the petitioners before entertaining the proceeding under Section 5 of the said Act initiated by the respondent, the Maharashtra Revenue Tribunal held that there is material on record to show that, the notice was duly published before making enquiry relating to the application for succession. The procedure, which is contemplated under the said Act, has been followed by the authorities, individual notice to interested parties is not provided under the said Act, and therefore, a public notice was given. The said notice is required to be published in the Government Gazette and the same was accordingly published.

12. All the contentions raised by the petitioners have been dealt with by the Additonal Collector and by the Tribunal. The reasons recorded by the Deputy Collector (Atiyat) are confirmed by the Additional Collector (Atiyat) and the Maharashtra Revenue Tribunal as well. The petitioners were given full opportunity by the Additional Collector and even by the Tribunal. The Revisional jurisdiction of the Maharashtra Revenue Tribunal itself is limited and therefore, once the Tribunal has confirmed the concurrent findings recorded by the authorities below, there is little scope for interference in the writ jurisdiction unless orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. The Supreme Court in case of Jai Singh and others vs. Municipal Corporation of Delhi and another [(2010)9 SCC 385] : [2010(6) ALL MR 410 (S.C.)] held that, the exercise of writ jurisdiction under Article 227 of the Constitution of India must be within the well-recognized constraints. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

13. The contention of the petitioner that in view of provisions of Section 12 of the said Act, the question relating to succession, legitimacy, divorce or other questions of personal law, decision of civil court shall have binding effect and will prevail over the decision of the Atiyat Court, as held by this Court in the case of Habibuddin Sadurddin (supra), would not fall for consideration in the present case. It is not the case of the petitioners that they have any decision of the Civil Courts in their favour declaring that they are successors of Smt. Bibban Bee. Therefore, in case there is any decision of the Civil Court, which takes a different view than the decision of the Atiyat Court. In that case only, the decision of Civil Court shall have binding effect and will prevail over the decision of Atiyat Court. However, there is no such decision in favour of the petitioners.

It also appears from the findings recorded by the authorities and the Tribunal that the possession of the suit land was taken by the Government for some period.

14. It has also come on record in the reply filed by the respondent before the Tribunal that, the Revision filed by the petitioners herein, was dismissed in default on 30.4.2011 and thereafter the Tahsildar handed over the possession of land Gat No. 324 and 478 vide panchnama dated 5.7.2011 in favour of respondent No.1. The authorities below have recorded the concurrent findings that, Smt. Bibban Bee great grand mother of the original applicant i.e. respondent herein, was the last holder of grant. It was also held that Gulam Hussain father of the original applicant was Shikmidar or shareholder in the grant. It is further held that original applicant i.e. respondent herein, alone was legal heir of Bibban Bee and said Gulam Hussain and consequently the application claiming succession was allowed.

15. The Maharashtra Revenue Tribunal held that the aforesaid concurrent findings recorded by the authorities below appears to be reasonable and proper and those findings are not perverse or arbitrary or baseless. Therefore, in the revision, those concurrent findings recorded by the authorities below have been confirmed. As stated earlier, the judgment and order assailed in this petition is passed by the Revisional authority where the scope of revision itself was limited. Therefore, in my considered opinion, the concurrent findings recorded by the authorities below, which are confirmed by the Tribunal appears to be reasonable and possible. The findings recorded are not perverse in any manner.

16. The Supreme Court in case of Surya Dev Rai vs. Ramchander Rai and others [(2003) 6 SCC 675] : [2003(4) ALL MR 761 (S.C.)], in para 20, relying upon the exposition of Supreme Court in case of Satyanarayan Laxminarayana Hegde v. Mallikarjun Bhavanappa Tirumale [AIR 1960 SC 137], held that the alleged error should be self-evident. An error which needs to be established by lengthy and complicated arguments or an error in a long-drawn process of reasoning on points where there may conceivably be two opinions cannot be called a patent error. In a writ of certiorari the High Court may quash the proceedings of the tribunal, authority or court but may not substitute its own findings or directions in lieu of the one given in the proceedings forming the subject matter of certiorari. In para 38(6) in case of Surya Dev Rai, [2003(4) ALL MR 761 (S.C.)] (supra), the Supreme Court held that, a patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a longdrawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.

17. The petitioners, in real sense, have utterly failed to bring on record any document/evidence to show that they are successors of Smt. Bibban Bee and therefore, they have no locus to challenge the succession proceeding initiated by the respondent. Thus, viewed from any angle, in my considered opinion, in the extraordinary writ jurisdiction, no interference is warranted in the impugned judgment and order dated 6.7.2010, passed by the Maharashtra Revenue Tribunal, Aurangabad in Revision No.84-B-2000-A. Hence, writ petition stands dismissed.

Ordered accordingly.